Page:Halsbury Laws of England v1 1907.pdf/618

 Animals.

396

Sect. 1. necessity (h) for the purpose of protecting the person, or saving At Common property in peril at the moment of the act (c). LawA dog attacking anyone may be shot in self-defence, whether it C)f a mischievous disposition or not, but to justify shooting even Protection of person. a ferocious dog the animal must be actually attacking the person at the time {d). In practice no question ever arises as to land from the Protection of land.

Protection of

other than land.

Malicious injury to dog.

Dog

spears,

traps and spring guns.

impossibility of proof of necessity. The property other than land must be valuable property, and animals includes cattle, sheep, or poultry, and all animals the subject of absolute property, and such as are the subject of a qualified property only, but probably game and other animals ferce naturce, which are not the subject of a qualified property, are not included (e). A similar rule exists in criminal cases. It is no defence to a QYiQ^^ge of unlawfully and maliciously killing, wounding or maiming a dog (/), that it was trespassing at the time; but if the accused proves that he bond fide believed that the act was necessary, and that he could save his property in no other way, he is entitled to be acquitted {g).

858. The limitation placed by the law on the shooting of dogs does not extend to prevent the occupier of land from taking measures to He may set dog spears in his protect his game in his absence. woods, and if a dog trespasses, and is injured thereby, he need not prove that his methods were necessary in order to protect his rights to the game, as he was acting within his rights on his own Wright

Ramscott (1665),

Saund. 83

Vere v. Caiudor (1809), 11 East, P. 581. [c) Janson v. Broiun (1807), 1 Camp. 41 Wells v. Head (1831), 4 C. & P. 568 ; Morris V. N%iqent (1836), 7 C. & P. 572 Haniuaij v. Boidthee (1830), 4 C. & P. 350; Clark v." Welster (1823), 1 C. & P. 104. Putting up a notice that trespassing dogs will be shot does not justify the shooting [Corner v. Champneys (1814), (&)

568



v.

1

Frotheroe v. Matheivs (1833), 5 C.



&





2

Marsh. 584). [d) Morris v. Nugent, swpra

Compare Barrington



Hanway

v. Boulthee,

supra.

Wadhurst Lev. 28 (deer in a park) Frotheroe v. Mathews, V. Damme (1604), Cro. Jac. 44 (rabbits in a warren) supra (deer in a park), which are all cases of animals reclaimed, and therefore property. Vere v. Caiudor, supra, is not, perhaps, a very definite authority either way, except that Le Blanc, J., expresses an opinion in favour of the view taken here. There is an obiter dictum of Blackbuew, J., to the contrary effect in Taylor v. Neiuman (1863), 4 B. & S. 89, at p. 91 "A person might shoot even a valuable greyhound which was chasing a hare if the hare was in peril," but the question of property in the hare was not there raised. The only definite decision on the point that the authors can find is a judgment of Judge Ingham in Penrith County Court (1881), 45 J. P. 83, where, after considering the authorities and statements in text-books, his Honour held that a trespassing dog may be shot where necessary to preserve animals the subject of property, but not to preserve animals ferce iiaturce, such as rabbits. (/) I.e., under s. 41 of the Malicious Damage Act, 1861 (24 & 25 Yict. c. 97), set out at length ante, pp. 369, 370. As to setting traps for vermin, cats and dogs, see Bryan v. Eaton{l^1b), 40 J. P. 213. {g) Miles v. Hutchings, [1903] 2 K. B. 714, commenting on Daniel v. Janes (1877), 2 C. P. p. 351, and Smith v. Williams (1892), 9 T. L. E. 9, which are now of doubtful authority. See also Taylor v. Neiuman, supra. As to the shooting of a trespassing dog not being cruelty, see Armstrong y Mitchell (1903), 19 T. L. R. 525. [e)

v. ^Z'-Mrner (1681), 3







.